People v Morgan

[*1] People v Morgan 2009 NY Slip Op 51944(U) [24 Misc 3d 1250(A)] Decided on September 17, 2009 Supreme Court, Kings County McKay, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 17, 2009
Supreme Court, Kings County

The People of the State of New York

against

Norman Morgan, Defendant.



4818-08



For the People: Hon. Charles J. Hynes, District Attorney, Kings County,

Assistant District Attorney Kirby F. Payne, of counsel

For the Defense: Stanley R. Kopilow, Esq.

Joseph Kevin McKay, J.

Defendant Norman Morgan has been charged with Criminal Possession of a Weapon in the Second, Third and Fourth Degrees (Penal Law §§ 265.03-3; 265.02-1 and 265.01-1), Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03), Aggravated Unlicensed Operation of a Motor Vehicle (V.T.L. § 511.1-A), and Use of Mobile Telephones (V.T.L. § 1225 -c(2)(a). Defendant now moves to suppress certain physical evidence to wit; a crack pipe and a semi-automatic pistol recovered from the vehicle he was driving at the time of his arrest. He also moves to suppress statements allegedly made by him after his arrest. As addressed below the People have withdrawn their intention to introduce on their direct case at trial, the initial CPL 710.30 noticed statement allegedly made by defendant at the precinct to a Detective Wright.

The Court makes the following findings of fact and conclusions to law after a combined Mapp/Dunaway/Huntley evidentiary hearing held on July 21, 2009. The record consists of the testimony of P.O. Eduardo Cornejo, who testified about the physical evidence which was seized and Det. Alejandro Zapata, who testified about the statements made by defendant. Also introduced at the hearing were various police-related exhibits.

The parties have submitted post-hearing memoranda of law which the Court has carefully considered in rendering its decision.

FINDINGS OF FACT

The physical evidence

The Court finds that the People's witnesses, P.O. Eduardo Cornejo and Det. Alejandro Zapata, were both credible and forthcoming witnesses, who testified truthfully in all major respects. [*2]

On May 10, 2008 at approximately 4:00 a.m. P.O. Cornejo [FN1] was patrolling in a marked police car with his partner P.O. Carita, who did not testify at the hearing. In the vicinity of East 14th Street and Claredon Road in Kings County Cornejo, as the recorder in the police car, observed defendant make a left turn in front of the RMP while defendant was holding a cellular phone in his hands. In all other respects defendant was operating his vehicle in a normal, lawful way. Cornejo identified defendant in court. The officers, using their strobe lights and siren, pulled over defendant's car and defendant then jumped out of the vehicle and stated immediately that his license was revoked. No one else was present in defendant's automobile. Cornejo and his partner ordered defendant back into his vehicle. P.O. Carita then asked defendant for his license, insurance and registration but defendant was unable to produce these documents. At that time Carita was positioned at the driver side window and Cornejo was on the passenger side. Cornejo shined a flashlight inside the vehicle and observed what appeared to be, based on his brief training at the police academy some 3 ½ years before, as well as his policing experience, a glass crack pipe with a burnt end and white residue. The pipe was on the front passenger seat. Cornejo then called out "92" - police code for making an arrest. Defendant was then placed under arrest and put in the rear of the RMP in handcuffs by Carita. The crack pipe was seized and then the police searched the vehicle looking for drugs that could be used in connection with the crack pipe. Although not binding on this Court, Cornejo believed that there was a "nexus" between the crack pipe and the potential for other drugs in the car. He however also conceded that this nexus and a search incident to a lawful arrest were the same thing in his mind. Defendant did not appear to be impaired by drugs. Inside a glove compartment Carnejo recovered a loaded .9 millimeter semi-automatic pistol - with one round in the chamber and 10 rounds in the magazine. Defendant was then brought back to the precinct to be processed. Cornejo did not recover any drugs or paraphernalia from the car. The recovered crack pipe, however, was vouchered and later chemically analyzed and found to contain cocaine residue.

The statements

The Assistant District Attorney at the hearing informed the Court and defense counsel that a Det. Adam Wright of the 67th Precinct had been notified to appear at the hearing but failed to do so. In light of his absence the People announced that they did not intend to introduce on their direct case at trial an oral statement allegedly made by defendant to Wright at the 67th Pct at approximately 11:00 a.m. on the day in question. The People have confirmed this position in their post-hearing brief. The Court, however, on the record took note of the CPL 710.30 VDF notice in the court file, which indicated that defendant allegedly made an oral statement to Wright at the 67th Pct at 11:00 a.m. to the effect that the gun and crack cocaine belonged to an individual named "Junior."

Det. Alexandra Zapata, presently assigned to the Counter-Terrorism Division, testified to defendant's statements made to him later that same day. On that day Det. Zapata was then assigned to the Gun Enhancement Unit for the 67th and 73rd Precincts, also known as Trigger Lock. Zapata made an in-court identification of defendant. Zapata first spoke to defendant in Central Booking at 120 Schermerhorn Street, Brooklyn at approximately 4:30 - 4:40 p.m., some 12 hours after his arrest. Defendant was removed from a holding pen and taken to a room out of the presence of other inmates. He was then questioned by Zapata, who was accompanied by Sgt. Danny Chiarantano. [*3]Defendant sat in a chair and was not handcuffed and Zapata was not armed. According to Zapata defendant was free to use a bathroom if he had asked but he did not do so. Zapata was unaware of whether defendant had been fed but testified it was the usual practice to supply prisoners at Central Booking with sandwiches and milk or water. Zapata did not threaten defendant nor did he make any promises to defendant to encourage him to make a statement. Defendant was alert at the time Zapata gave him his Miranda warnings, his answers were clear, and he did not ask Zapata to repeat himself at any point. Defendant initialed each written Miranda right and also signed the Miranda form. Defendant then gave an oral statement that was then memorialized in writing by defendant. Defendant stated in words or substance that upon searching his car the police recovered a gun and a crack pipe. The gun was the same one a friend had shown him a few days before. Defendant stated he had no idea that the friend left it in the car "the second time" they met, which was the day defendant was pulled over by the police. Defendant further stated that on the second day he did touch the gun but it did not belong to him. In his oral statement defendant said it was "Junior" who showed him the weapon. Zapata did not ask defendant why he failed to specifically mention Junior in his written statement. Defendant was given his Miranda warnings at approximately 4:40 p.m. and signed his statement at 5:05 p.m. Zapata did contact Det. Wright earlier in the day to inform him that the gun enhancement division was now involved in the case but Zapata was unaware of the fact that Wright had already interrogated defendant.

CONCLUSIONS OF LAW

On a motion to suppress physical evidence, the burden of going forward to present evidence to demonstrate the legality of police conduct is on the People in the first instance. See People v. Dodt, 61 NY2d 408 (1984); People v. Malinsky, 15 NY2d 86 (1965); People v. Hernandez, 40 AD3d 777 (2d Dept 2007). Once the People have met this burden it is the defendant who bears the burden of proving any illegality of the police conduct by preponderance of the evidence. See People v. Berrios, 28 NY2d 361 (1971); People v. Whitehurst, 25 NY2d 389 (1969). Additionally, the People have the burden of proving the voluntariness of any statements allegedly made by a defendant beyond a reasonable doubt. See People v. White, 10 NY3d 286 (2008), People v. Witherspoon, 66 NY2d 973 (1985); People v. Anderson, 42 NY2d 35 (1977).

As for the physical evidence recovered from defendant's vehicle, this Court has credited the testimony of Officer Cornejo. Here the People have presented sufficient evidence that the stop and approach of defendant's vehicle was proper based upon seeing defendant operating his automobile while using a non hands-free cellular phone in violation of the Vehicle and Traffic Law. See People v. Ingle, 36 NY2d 413 (1975). Any underlying motive or pretext for the stop is irrelevant. See People v. Robinson, 97 NY2d 341 (2001). Cornejo, standing outside the passenger side of the car, properly shined his flashlight into the car and observed a crack pipe with apparent residue located in plain view on the front passenger seat. See People v. Edwards, 29 AD3d 818 (2d Dept 2006); People v. Parris, 26 AD3d 393 (2d Dept 2006), lv denied 6 NY3d 851 (2006); People v. Clark, 23 AD3d 673 (2d Dept 2005), lv denied 6 NY3d 832 (2006). A crack pipe is a tell-tale sign of narcotics possession. See People v. Ketteles, 62 AD3d 902 (2d Dept 2009); People v. Edwards, 160 AD2d 501 (1st Dept 1990), lv denied 76 NY2d 787 (1990). Having observed in plain view defendant in constructive possession of a crack pipe, which Cornejo recognized from his police academy drug training and from making at least one previous arrest involving such a pipe, the arresting officer had reason to believe that defendant unlawfully possessed a controlled substance, consisting of at least [*4]crack residue. See People v. Ketteles, supra .

Defendant however argues the subsequent search of the automobile and seizure of the weapon from the vehicle's glove compartment was illegal in light of the recent United States Supreme Court decision in Arizona v. Gant, 556 US ____, 129 S. Ct. 1710 (May 12, 2009). This Court disagrees. In Gant, the Court clarified and restricted its holdings in Chimel v. California, 395 US 752 (1969) and New York v. Belton, 453 US 454 (1981), which pertain to automobile searches and "grabbable areas" incident to a lawful arrest. The Court held that: "The safety and evidentiary justifications underlying Chimel's reaching distance rule determine Belton's scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 US 615 (2004), and following the suggestion of Justice Scalia's opinion concurring in the judgment in that case, id at 632, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle". At 1714 (emphasis provided). The Court made it clear that in cases when a recent occupant is arrested for a traffic violation there will be no reasonable basis to believe the vehicle contains relevant evidence. At 1719. The Court, however, offered further clarification which is applicable to the instant case: "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the searchor it is reasonable to believe the vehicle contains evidence of the offense of arrest." At 1727 [Emphasis added). In the case at bar defendant was not being arrested for his illegal use of the cellular phone while driving but for possessing a crack pipe with residue. It was therefore reasonable for the police to search the defendant's vehicle looking for crack cocaine, including a search inside defendant's glove compartment.

The Court notes People v. Rives, 237 AD2d 312 (2d Dept 1997), lv denied 90 NY2d 1013 (1997), cited by defendant, is consistent with the Gant decision, but does not support defendant's case for suppression. Indeed, although decided many years before Gant, it is directly on point. In Rives, the police stopped the defendant's vehicle in connection with a traffic violation. The arresting officer observed a glass pipe used to smoke crack cocaine, which apparently contained cocaine residue, on the front seat of the defendant's vehicle. The Second Department held that: "These observations, together with the driver's inability to produce a valid registration or driver's license, provided the police with both probable cause to arrest the defendants and to believe that the vehicle contained contraband." [citation omitted]. The Rives Court further held that the hearing court properly denied suppression of drugs hidden behind the glove compartment. Therefore the Rives case does not violate the Gant decision, and is still good law [FN2] Finally defendant's contention that residue alone is insufficient to qualify a defendant to be in knowing possession of a controlled substance is without merit. See People v. Mizell, 72 NY2d 651 (1988); People v. Williams, 266 AD2d 97 (1st Dept 1999), lv denied 94 NY2d 886 (2000), habeas corpus denied 2002 WL 31415696 [*5](S.D.NY 2003).

The statements

Initially the Court notes that, although the admissibility of defendant's non-custodial statement at the scene to the police that his license was revoked has not been specifically challenged by defendant, the Court finds such statement was voluntary and spontaneous. See People v. Rosario, 245 AD2d 470 (2d Dept 1997), lv denied 91 NY2d 944 (1998). Moreover the People have formally withdrawn their intention to introduce on their direct case at trial any statements made by defendant at the 67th Pct at 11:00 a.m. to Det. Wright. In any event, since the People offered no evidence as to the circumstances surrounding these statements to Wright they would have been suppressed. More troubling, however, is what effect, if any, those statements made by defendant to Wright may have had on defendant's alleged statements to Zapata. Defendant specifically contends that there has been a violation of the rule enunciated in People v. Chapple, 38 NY2d 112 (1975).[FN3]

In Chapple and People v. Bethea, 67 NY2d 364 (1986), the Court held that where a defendant has made an unwarned custodial statement a later Mirandized statement may still have to be suppressed if it is determined that the confessions were in reality part of a single continuous chain of events. See People v. Paulman, 5 NY3d 122 (2005). As the Paulman Court noted: "To determine whether there is a single continuous chain of events' under Chapple, New York courts have considered a number of factors, including the time differential between the Miranda violation and the subsequent admission, whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police. No one factor is determinative and each case must be viewed on its unique facts. The purpose of the inquiry is to assess where there was a sufficiently definite, pronounced break in the interrogation' to dissipate the taint from the Miranda violation (Chapple, 38 NY2d at 115). If so, the Mirandized statement is admissible at trial despite the prior, unwarned.statement." At 130 - 131.

In the instant case defendant was questioned by Zapata nearly six hours after being interrogated by Wright. See People v. Vachet, 5 AD3d 700 (2d Dept 2004), lv denied 3 NY3d 649 (2004) [3 hour interval]; People v. Sepulveda, 52 AD3d 539 (2d Dept 2008), lv denied 11 NY3d 794 (2008) [4 hour interval]; People v. Rodriguez, 49 AD3d 431 (1st Dept 2008), lv denied 10 NY3d 964 (2008) [3 hour interval]: People v. Abreau, 184 AD2d 707 (2d Dept 1993), lv denied 80 NY2d 972 (1992) [8 hour interval]. In addition to considering the time lapse the Court notes that the questioning took place in an interview room at Central Booking and not at the 67th Pct. The interviewer was Zapata, who was unarmed, and not Wright, and there was no evidence in this record of any trappings of coercion. Therefore, based upon the credible record before this Court, I conclude that there was indeed a sufficient break in events so that defendant's later statements to Zapata were not tainted by any illegality relating to the earlier statements made to Wright. Based [*6]upon this attenuation the Court therefore concludes that defendant's Mirandized statements to Zapata were voluntary beyond a reasonable doubt and are admissible at trial if the People wish to introduce them on their direct case.

Accordingly defendant's motions to suppress physical evidence and the aforesaid statements are DENIED in all respects.

IT IS SO ORDERED.

ENTER,

J.S.C.

Footnotes

Footnote 1: Cornejo at the time of his testimony was a member of SNEU (Street Narcotics Enforcement Unit) but was a routine patrol officer on the day in question.

Footnote 2: See People v. Langen, 60 NY2d 170 (1983), cert denied 465 US 1028 (1984); see also People v. Andeliz, 3 Misc 3d 384 (Sup Ct, Kings County 2004) [and cases cited therein] where this Court held that the automobile exception applies to search of a vehicle when the police "have probable cause to believe contraband is inside which is related to the nature and scope of an authorized arrest already being effected"`. At 391.

Footnote 3: Defendant does not maintain that his statements to Zapata should be analyzed under the theory of "the cat out of the bag." See People v. Tanner, 30 NY2d 102 (1972). That theory is premised on the principle that a defendant may have made his second confession on constraint of having already made his first one in effect feeling so committed by what he had previously said to the police that he believes it futile to assert his rights after he has been later advised of them.